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Libya
LAW AND THE JUDICIARY
During the period of the Ottoman Empire, a dual judicial system
that distinguished between religious and secular matters developed
in Libya and other subject countries. For Muslims, the majority
of cases--those involving personal status, such as marriage and
inheritance--fell within the jurisdiction of religious courts,
which applied the Maliki interpretation of Islamic law--the sharia
(see Islam and the Arabs , ch. 1; Tenets of Islam , ch. 2). The
courts were organized into both original jurisdiction and appellate
levels and each was directed by a qadi (see Glossary), an Islamic
religious judge. Secular matters--those involving civil, criminal,
and commercial law--were tried in a separate court system. Laws
covering secular matters reflected Western influence in general
and the Napoleonic Code in particular. Non-Muslims were not under
sharia. For example, the Jewish minority was subject to its own
religious courts. Europeans were subject to their national laws
through consular courts, the European nations having secured capitulary
rights from the Turks.
The colonial powers that ruled Libya after the disintegration
of the Ottoman Empire maintained the dual judicial structure.
After Libya achieved independence, however, an attempt was made
to merge the religious and secular legal systems. The merger,
in 1954, involved the subordination of Islamic law to secular
law. Popular opposition, however, caused the reestablishment of
the separate religious and secular jurisdictions in 1958.
The 1969 constitutional proclamation provided little guidance
for the postrevolutionary judiciary. Equality before the law and
presumption of innocence were stipulated, and inheritance was
made subject to sharia. The RCC was given the power to annul or
reduce legal sentences by decree and to declare general amnesties.
Also stipulated was the independence of judges in the exercise
of their duties, subject to law and conscience. It was the RCC,
however, that promulgated laws.
Judicial independence and the due process of law were respected
during the first decade of the postrevolutionary regime, except
when political crimes were involved. After 1979, however, the
situation deteriorated in direct proportion to the growth of the
revolutionary committees (see The Revolutionary Committees , this
ch.).
Qadhafi and other RCC members believed that the separation of
state and religion, and thus of secular and religious law, was
artificial--that it violated the Quran and relegated sharia to
a secondary status. Two postrevolutionary bodies dealt with this
situation. The Legislative Review and Amendment Committee, composed
of Libyan legal experts, was created in October 1971 to make existing
laws conform to sharia. The ultimate aim was for Islam to permeate
the entire legal system, not only in personal matters, but also
in civil, criminal, and commercial law. The Higher Council for
National Guidance was created the next year (see Political Ideology
, this ch.). Among its philosophical and educational duties was
the presentation of Islamic moral and spiritual values in such
a way that they would be viable in contemporary Libyan society.
Application of Islamic legal tenets to contemporary law and society
presented certain difficulties. There was, for example, the question
of the proper contemporary meaning of traditional Islamic physical
punishments, such as the severance of a hand for the crime of
theft. Debates arose over whether severance should mean actual
amputation or merely impeding the hand from future crime by removing
need and temptation. The most literal interpretations were adopted,
but their actual imposition as legal punishment was very much
restricted by exemptions and qualifications, also based on Islamic
tenets. A thief's hand would not be amputated, for example, if
he truly repented of his crime or if he had committed the theft
to feed a starving family. Indeed, numerous observers have reported
that the more extreme physical punishments are rarely, if ever,
performed.
Data as of 1987
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